Advisory Opinion to Holland (12-16-99)

This responds to your letter asking the views of the Commission staff on the applicability of the Fair Credit Reporting Act ("FCRA") to the reporting by consumer reporting agencies ("CRAs") of public record data for employment purposes.

First, you ask about CRA compliance with Section 613(a)(2) of the FCRA, when an employer requests a report limited to specific types of public record data. You report that employers "often request that the CRA not report arrest data, open warrants, nor (sic) probation information" on the consumer that they find in the public record. Section 613(a) of the FCRA requires CRAs, when providing adverse public record data to employers, to either (1) notify the report subject or (2) maintain strict procedures to ensure that the data is complete and up to date. In pertinent part, the full text of Section 613(a)(2) provides:

"A (CRA) which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall . . . (2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported. (Emphasis added).

We view this provision, which is specifically cast in terms of "items of (public record) information" to require only that each item reported be complete and up to date. For example, if the CRA reports an indictment, it must also report any dismissal or acquittal available on the public record as of the date of the report. Similarly, if the CRA reports a conviction, it must report a reversal that has occurred on appeal. We understand that a report that deliberately omits arrest data at an employer's request is not a "complete" reflection of every single piece of information that might be gleaned from the public record. Because we read Section 613(a)(2) as being item-specific, however, we believe the CRA complies with that provision if its report is "complete and up to date" in the sense that it includes the current public record status each individual item reported.

Second, you ask about CRA compliance with Section 605 of the FCRA, which forbids CRAs from reporting most adverse action that antedates the report by seven years or more, in connection with open warrants the CRA finds in the public record. You state these warrants "range from capital crimes, violation of parole, failure to appear for a court hearing to over due parking citations." It is our opinion that Section 605 does not prohibit reporting a warrant that is in fact "open" (i.e., no arrest or other execution has occurred), regardless of how long it has been outstanding. The Commission has made clear its view that imprisonment may be reported for seven years after the release from custody.(1) In the same manner that the CRA may report confinement as long as it continues (and seven years thereafter), we believe it may report a warrant as long as it is "open" without violating Section 605.(2)

The views set forth in this informal staff opinion letter are not binding on the Commission.

Sincerely yours,

Clarke W. Brinckerhoff

Endnotes:

1. "If the consumer is convicted of a crime and sentenced to confinement, the date of release or placement on parole controls. Confinement, whether continuing, or resulting from revocation of parole, may be reported until seven years after the confinement is terminated." 16 CFR § 600, App., 55 Fed. Reg. 18804, 18818 (May 4, 1990).

2. Of course, to the extent such an item is included in a report for employment purposes, the CRA must comply with Section 613, as discussed in the previous paragraph. That is, the CRA must either notify the consumer as provided in Section 613(a)(1), or maintain strict procedures to ensure the item is complete and up to date in accord with Section 613(a)(2).

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